Federal Constitutional Court - Press office -
Press release no. 34/2012 of 30 May 2012
Order of 2 May 2012 – 2 BvL 5/10 –
Retrospective reform of the temporary increase in the rate of the
retirement pension held constitutional
Civil servants who have acquired, in addition to their civil service
pension entitlement, a pension entitlement under the statutory pension
scheme from a previous job are in a special pension situation if they
retire prior to reaching the statutory pension age – for example due to
invalidity or because there is a special age limit. They are initially
entirely dependent on their civil service pension benefits since they
cannot draw their old-age pension until they reach the statutory pension
age. This can be disadvantageous for civil servants if the number of
years that can be taken into consideration for the purposes of
calculating their pension benefits is few because they did not acquire
civil servant status until late in their careers and retired early. §
14a of the Civil Servants’ Pensions Act (Beamtenversorgungsgesetz –
BeamtVG) compensates for this “gap in pension provision” in the case of
persons with what are known as “mixed careers” through a temporary
increase in the retirement pension rate until the old-age pension
becomes payable.
Under the original version of § 14a.1 BeamtVG, the increase was
calculated on the basis of the “retirement pension rate calculated
according to the other provisions”. The administrative authorities
interpreted the provision to mean that only a retirement pension rate
calculated (“earned”) on the basis of reckonable service was relevant.
This was consistent with the rulings of the administrative courts and
the opinion of a number of legal scholars. On the other hand, the
Federal Administrative Court (Bundesverwaltungsgericht) concluded in its
judgment of 23 June 2005 that a minimum retirement pension rate of 35%
of pensionable earnings was also a “calculated” retirement pension rate
within the meaning of § 14a.1 BeamtVG. The administrative authorities
have not, however, followed this interpretation of the law; furthermore,
only part of the lower courts have followed it.
The Civil Service Law Reform Act (Dienstrechtsneuordnungsgesetz –
DNeuG), which was promulgated on 11 February 2009, amended § 14a.1
BeamtVG so that only the “earned” pension rate would be used as the
basis for calculating the temporary increase in the retirement pension
rate. Article 17.1 DNeuG provided that the amendment would take effect
on 24 June 2005; i.e. at the same time as the conflicting decision
handed down by the Federal Administrative Court.
The plaintiff in the original administrative court proceedings had been
an officer with the Federal Border Guard (which was later renamed the
Federal Police) since 1992. After turning 60, he retired at the end of
February 2008 due to age. The Northern Federal Finance Office
(Bundesfinanzdirektion Nord) assessed his pension at €1,691.89 and
temporarily increased his “earned” retirement pension rate of 32.64% by
24.58% to a total of 57.22 % of pensionable earnings pursuant to § 14a.1
BeamtVG (old). The plaintiff sought to have his retirement pension rate
temporarily increased on the basis of the minimum retirement pension
rate to a total of 59.58 % of his pensionable earnings so that he would
receive a pension of €1,761.68. The Northern Federal Finance Office
rejected his application. The action brought by the plaintiff against
such rejection resulted in the submission pursuant to Article 100.1 of
the Basic Law (Grundgesetz – GG) made to the Federal Constitutional
Court by the Federal Administrative Court, which holds the view that the
retrospective amendment of § 14a.1 BeamtVG infringed the rule-of-law
principle of the protection of legitimate expectations under the Basic
Law.
The Second Senate of the Federal Constitutional Court decided that
Article 17.1 DNeuG is compatible with the Basic Law and, in particular,
with the constitutional requirements placed on the protection of
legitimate expectations. According to the Federal Constitutional Court,
the retrospective application of the provision is not impermissible
under constitutional law and does not infringe the legitimate
expectation of civil servants entitled to a pension that they will be
provided for in their old age in a manner appropriate to their office,
which expectation is protected by Article 33.5 GG.
In essence, the decision is based on the following considerations:
1. Article 17.1 DNeuG has retrospective effect, which is measured in
each case in terms of the legal situation used as a basis by the Federal
Administrative Court. This is not altered by the fact that the
administrative authorities view the retrospective amendment of § 14a.1
BeamtVG (old) simply as a clarification of the existing situation as is
stated in the explanatory memorandum. It is for the courts to provide
binding interpretations of legal provisions. Accordingly, if the
legislature claims that it has the authority to provide an “authentic”
interpretation of a provision which is retrospectively amended, such
claim cannot be recognised. In deciding whether a retrospective
provision has law-altering effect, a finding that the amended provision
could be and has been interpreted by the courts according to recognised
principles of statutory interpretation in a manner which was intended to
be excluded by the amendment suffices. That is the case here. The
legislature’s amendment of § 14a.1 BeamtVG (old) amounted to a decision
on its part of a matter in dispute in a manner diverging from that of
the supreme federal court and its decision therefore had a law-altering
effect.
2. However, Article 17.1 DNeuG is not objectionable in view of the
constitutional limits on retrospective legislation. On the part of the
civil servants affected, there are no legitimate expectations worthy of
protection that would prevent the retrospective entry into force of §
14a.1 BeamtVG. The confidence in the existing legal situation guaranteed
by the principle of the rule of law and Article 33.5 GG is only worthy
of protection if the statutory provision is generally suitable for
establishing confidence in its continued existence and inducing
decisions – in particular dispositions of property – which would prove
disadvantageous if the legal situation were to change. It was not
possible under the given circumstances for the civil servants affected
to develop a sufficiently firm confidence, which was thus worthy of
protection, in the fact that the minimum retirement pension rate was a
“calculated” retirement pension rate within the meaning of § 14a.1
BeamtVG (old). The regulatory content of § 14a.1 BeamtVG (old) was not
clear in this respect. There was no established case law of the supreme
federal court on the issue. Instead the Federal Administrative Court’s
judgment of 23 June 2005 diverged from prior administrative practice and
the interpretation of § 14a.1 BeamtVG (old) adopted in the rulings of
the lower courts and by a part of the legal scholars. The judgment has
been heavily criticised by legal scholars and at least one higher
administrative court has failed to follow the case law of the Federal
Administrative Court. In addition, the authorities in charge of civil
servants’ pensions have made it clear that the judgment of 23 June 2005
should not be followed over and beyond the decision in the individual
case and that clarification by the legislature is needed. Moreover,
legislative initiatives at both the federal and state level for
providing a statutory foundation for the unchanged administrative
practice have been launched. Under these circumstances it could be
expected that the Federal Administrative Court would correct its
interpretation of the law. Accordingly, there was an insufficiently
secure basis for confidence in the continued existence of the legal
situation based on this decision.
This press release is also available in the original german version.
|
